IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE LIGHTMAN)
B e f o r e :
LORD JUSTICE LAWS
SIR MARTIN NOURSE
|IN THE MATTER OF KEITH JAMES O'DONOGHUE||Applicant/Defendant|
|IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1988|
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MS P SMALL (instructed by Saunders & Co) appeared on behalf of the Applicant
MR S HELLMAN (instructed by the Central Confiscation Branch) appeared on behalf of the Respondent
Crown Copyright ©
"If, on an application by the defendant in respect of a confiscation order, the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order the court shall issue a certificate to that effect, giving the court's reasons."
"2. On his conviction for obtaining property by deception and theft on the 16th July 2001, Mr O'Donoghue was sentenced to three years in jail and a confiscation order was made against him in the amount of £94,587 of which £43,223.42 remains unsatisfied. The £94,587 reflected what the court found to be the realisable value of a number of his assets, of which three are relevant. One is a Vauxhall Vectra car valued at £3,500. It was later sold for £2,450. The second is a caravan valued at £14,000 and later sold for £3,950. Mr O'Donoghue claims that he is entitled to a certificate of inadequacy reflecting the shortfalls of £1,050 and £10,050 in respect of these items. The third item is the sum of £35,500 which approximately one year prior to the confiscation hearing was withdrawn from an account at the Woolwich plc in the name of a Ms Casey and which has not been paid into court or accounted for despite an order that Ms Casey notify the CPS of its whereabouts and repatriate an equivalent sum.
"3. The prosecution accept that, if Mr O'Donoghue establishes that the value of his realisable property other than the car and the caravan remains the same as at the date of the confiscation order, he is entitled to a certificate of inadequacy in the shortfall in respect of the car and the caravan of £11,100. But the prosecution say correctly that in order for Mr O'Donoghue to obtain a certificate of inadequacy, he must establish that the value of his realisable property as a whole has decreased since the date of the confiscation order and that therefore it is no longer adequate to satisfy the amount of the confiscation order and that account must be taken of any undisclosed interest or other fruits obtained from the £35,500.
"4. The question raised is whether account should be taken of the possible or probable interest or other fruits of this sum. It is clear that on an application for a certificate it is not possible to go behind the finding in the original confiscation order as to the amount of the defendant's realisable assets and accordingly that he was the beneficial owner of the sum of £35,500. A challenge can only be made by way of appeal against that finding in the confiscation order. It is likewise clear that the burden is on the defendant to establish that the value of his assets is inadequate to satisfy all the value of the confiscation order, and for this purpose it is not sufficient for him to come to court and say that his assets are inadequate unless at the same time he condescends to demonstrate what has happened since the making of the confiscation order to the realisable property found by the trial judge to have existed when the confiscation order was made: see Gokal v. SFO  EWCA Civ 368. In the circumstances as a matter of principle the burden must be on Mr O'Donoghue on this application to satisfy the court as to what he has done with the income and fruits of the £35,500."
"It seems to me it would be to speculate to say that there was a sum of money available to meet the £15,762.23."
"For it fails to take account of the burden of proof on the defendant."
"...authority for any general proposition that to assume interest on money deposited in a bank would amount to speculation".
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
"Finally, when calculating the value of the realisable assets available to the applicant, it is significant that the judge took into account only the house and the applicant's one-third share of the family business, specific items which he had found on the evidence still to belong to the applicant. The judge accepted the applicant's evidence when assessing the value of these assets. Whilst the Court considers that an issue relating to the fairness of the procedure might arise in circumstances where the amount of a confiscation order was based on the value of assumed hidden assets, this was far from being the case as regards the present applicant."
"This account is in his wife's name and she, Mary Casey, gave evidence to the effect that the money was put into the account belonging to her uncle, who was involved in buying and selling horses, vehicles and tools. The whole situation is unbelievable. There is no reason why the uncle could not have put the money into an account bearing his own name. Of course, no evidence has been called from him.
"Keith O'Donoghue's account in relation to these various monies [that is to say monies including the money in the Woolwich account] has been inconsistent with what he said at the time of arrest. I have no doubt that his evidence is false and those various sums will be brought into account as part of the benefit."
"This is not however necessarily the end of the matter. Where a defendant fails to discharge the burden of proof in respect of an asset, the court may, depending upon the significance of the non-disclosure in respect of the adequacy or otherwise of the realisable assets adopt either of two alternative courses. The first is to refuse the application for the certificate. The second is (for the purposes of the application) to presume that the defendant has obtained a reasonable return. For this purpose every reasonable presumption will be made against him as a wrongdoer ie a party who has failed to make disclosure."
Order: Appeal dismissed.